FAA’s Commercial Drone Quandary

THE FAA’S AMAZON EXEMPTION SIGNALS A COMMERCIAL DRONE QUANDARY ON THE HORIZON

By: Maxwell Mensinger, Volume 99 Staff Member

Last week, the Federal Aviation Administration (FAA) granted Amazon a much anticipated but highly restrictive license to test its drone delivery program. The event prompted various responses. Some commentators found the FAA’s progress laudable, particularly considering its past reluctance to embrace drone technology.[1] Others, including Amazon, saw the gesture as something more akin to a regulatory cold shoulder.[2]

The advent of commercial drones may potentially revolutionize the way we think about commerce, innovation, and service. S.F. Express, a logistics company in China, sends drones to deliver packages to remote areas in mountainous regions.[3] News agencies fly drones over protests in Kiev to capture unique footage and broadcast it to interested viewers.[4] Rangers in Africa and Asia employ drones to monitor elephant populations and fend off poachers.[5] Australian farmers use drones named “Mantis” and “Shrimp” to monitor fruit and soil, using data acquired to map land and determine “optimal inputs.”[6] Though often tiny and unassuming, drones are important, and the FAA knows it. The Agency recently announced an interim policy[7] to allow commercial drone operators who receive initial approval to fly somewhere a further blanket approval to fly at or below 200 feet almost anywhere until its final rules are passed—pursuant to the FAA Modernization and Reform Act of 2012 (FMRA)—in the coming years.

This marks a sharp break from the FAA’s heel-dragging approach over the last few years, in which it banned all commercial use of drones, and issued exemptions (formally, a Section 333 “experimental airworthiness certificates”)[8] haltingly to legally fluent applicants seeking conditional authorization to fly in a “particular block of airspace” on a case-by-case, sixty-day-minimum basis.[9] Applications function as intensive questionnaires regarding the device at issue, and the FAA rarely grants them.[10] Now the process is streamlined for those who receive an initial exemption, but still undoubtedly complex for those seeking one.[11]

Enter Amazon, touting high-profile plans to deliver orders via drone.[12] The promotional video[13] for the project depicts a man selecting a “30-minute delivery” option, followed by an employee placing the order in a box at the Amazon warehouse, and a smiling Amazon drone lifting and carrying it to the customer’s house. As its website notes, “[i]t looks like science fiction, but it’s real.”[14] In June of 2014, Amazon petitioned the FAA for a Section 333 exemption to test its operation, and last week the FAA granted it.[15] But the exemption, once issued, raised some eyebrows.

Under its terms, all flights must occur at or below 400 feet during daylight hours, clear skies permitting, and must “always remain within visual line-of-sight of the pilot and observer.”[16] The pilot must have both a private pilot’s certificate and medical certification.[17] To be clear, Amazon knew and accepted that these conditions may apply. Its letter to the FAA promised to confine all operations to “isolated Amazon private property,” within the visual line of sight of the operator or observer, below 400 feet, and “under the supervision” of a pilot in command.[18] Nevertheless, commentators suggest that these requirements may interfere with any innovative testing Amazon planned to do.[19]

Amazon ultimately wants to deliver packages over distances of at least ten miles using autonomously controlled drones.[20] The FAA’s exemption requirements render this a pipedream. If Amazon abides by its tenets, then those lucky neighbors living adjacent to an Amazon warehouse will now enjoy a delivery service almost as fast as a takeout service from that same warehouse. If Amazon wants to dream bigger than that, then consider the customer-service bump it will receive when someone retrieving a drone package sees a wave and a nod from the pilot chugging behind on her Segway, eyes locked on the drone. That the drone model Amazon is now authorized to test is already obsolete[21] proves an added minus to the whole ordeal.

In some sense, it seems unfair that Amazon and its proponents now complain about rules it ostensibly acceded to almost nine months ago. But the FAA has taken considerable flak for its cautious approach to commercial drones in general, and responses to the Amazon exemption merely reflect this growing frustration. Even the FAA’s new interim policy seems a far cry from those in other countries. Australia has issued licenses to commercial drone operators since 2002,[22] attracting companies like Zookal and Flirtey, whose success may in fact require them to expand beyond Australia’s borders in the near future.[23] Google and Amazon are eyeing Australia as the next step in their quest to find a drone-friendly home.[24] Alibaba’s efforts to promote a drone-delivery program are finding some success in China.[25] Canada, too, recently announced plans to abolish the already thin red tape standing between businesses and their commercial drone aspirations.[26] As Amazon executive Paul Misener noted in his testimony before the Senate Subcommittee on Aviation Operations last week, “Nowhere outside of the United States have we been required to wait more than one or two months to begin testing.”[27]

This is not to say that other countries have successfully puzzled through the issues surrounding drone technology. Indeed, Misener admits that “No country in which we now have distribution facilities has yet adopted rules that would allow commercial [drone] package deliveries.”[28] Some countries, like Spain and Kenya, ban commercial drone use altogether.[29] Even countries with friendlier legal climates continue to grapple with the risks that accompany widespread drone use.[30] But the United States stands to benefit from the commercial drone industry considerably—to the tune of about $90 billion dollars over the next decade[31]—and the FAA’s failure to further facilitate the industry’s development confounds those seeking to tap the emerging market.

The FAA’s proposed rules provide little consolation to companies like Amazon. Anyone operating a drone “would always be required to [maintain] visual line of sight of the [drone],” or at least employ a “visual observer” who could do so.[32] Even when using a visual observer “to augment the operation,” the drone must “always remain close enough to the control station for the operator to be capable of seeing that aircraft.”[33] The rules also vaguely prohibit “allowing any object to be dropped . . . if doing so would create a hazard to persons or property,”[34] which, absent further elaboration, subjects operators to a malleable standard with comparably little guidance as to its satisfaction. While these constraints may not problematize certain commercial drone uses, such as oil platform inspection, they will make other potentially prosperous uses practically infeasible.

Amazon’s situation is not unique. It signals that difficult questions trouble the FAA, and serves to remind companies, governmental authorities, and private citizens that technological evolution carries both benefits and burdens that few can contend with easily. Whether the FAA’s proposed rules withstand public scrutiny or buckle under its pressure remains to be seen. But no one—neither Amazon nor the FAA—appreciates feeling shoved into a legal pressure-cooker at this juncture.

[1] Nick Wingfield, Amazon Wins Approval To Test Delivery Drones Outdoors, The New York Times (Mar. 19, 2015), http://www.nytimes.com/2015/03/20/technology/amazon-wins-approval-to-test-delivery-drones-outdoors.html?_r=0 (“[E]ven getting permission to test drones outdoors with a pilot counts as progress for Amazon, which has been lobbying the F.A.A. for approval to do so for months.”)

[23] Sarah Kimmorley, This Drone Delivery Startup Is Moving Overseas, Because Australia’s Too Small To Support Its Growth, Business Insider Australia (Sept. 2, 2014), http://www.businessinsider.com.au/this-drone-delivery-startup-is-moving-overseas-because-australias-too-small-to-support-its-growth-2014-9.

[31] Larry Downes, America Can’t Lead the World in Innovation if the FAA Keeps Dragging Its Feet on Drone Rules, The Washington Post (Oct. 8, 2014), http://www.washingtonpost.com/blogs/innovations/wp/2014/10/08/america-cant-lead-the-world-in-innovation-if-the-faa-keeps-dragging-its-feet-on-drone-rules/.